State v. JeffersonState v. Jefferson
Defendant, Gary Jefferson, was charged with armed robbery in violation of
On appeal, defendant relies on two assignments of error. The first relates to the court‘s charge to the jury concerning disposition after a verdict of not guilty by reason of insanity. The second involves the sentence as an habitual offender.
After the jury had retired for deliberation, it requested further instructions. The jury asked what would happen to defendant if he were found not guilty by reason of insanity. The trial judge read the relevant code articles (
“Your Honor, I‘m not so much concerned with your reаding them the law as your answer to some of the other questions, which may have tendered (sic) to lead the jury in a direction that is advеrse to the defendant.” (Tr. 91)
After the verdict, the State filed a bill of information charging the accused as a triple offender. Defendant, in open court through counsel, admitted the allegations in the multiple bill, was adjudged a multiple offender, and sentenced to a maximum sentence of 198 years.
ASSIGNMENT OF ERROR NUMBER ONE
Defendant complains that the trial court erred when it gave additional instructions about the law pertaining to a verdict of not guilty by reason of insanity, and misled the jury in regard to the mental treatment given in prison. In brief, counsel argues
These objections are not properly before this Court as defendant did not object to the statements at the time they were made. An objection to the court‘s charge after the jury has retired is untimely. State v. Williams, 366 So.2d 1365 (La., 1978); State v. Beard, 312 So.2d 278 (La., 1975);
Further, the objections are without merit. In State v. Babin, 319 So.2d 367 (La., 1975), it was held that instructions explaining the consеquences of a verdict of not guilty by reason of insanity must be given if requested by defendant or by the jurors.
It is established that particular expressions in a jury charge must be considered in the context of the entirе charge. State v. Williams, 366 So.2d 1365 (La., 1978); State v. George, 346 So.2d 694 (La., 1977). There was no refusal here to give requested instructions. The judge made a conscientious effort to comply with State v. Babin, supra, by reading the text of
ASSIGNMENT OF ERROR NUMBER TWO
Defendant also complains that he was illegally sentenced as a multiple offender under
State v. Lewis, 367 So.2d 1155 (La., 1979) held that:
“In a multiple offender hearing, only those previous pleas of guilty may be used to enhance a sentence which are supported by a contemporaneous record of a Boykin exаmination demonstrating the free and voluntary nature of a plea of guilty with an articulated waiver of the constitutional rights required by Boykin v. Alabama.” 367 So.2d 1160.
Subsequent to Lewis, thе United States Supreme Court decided that a plea of guilty which failed to comply with
Holden declared:
“Upon objection by defense counsеl that the guilty plea does not affirmatively show it was taken in compliance with Jackson and LeBlanc, the state will have the burden to show as to these сonvictions that the defendant waived his constitutional rights . . . .” 375 So.2d 1376.
Holden specifically notes in the quoted language that an objection is required before the State has the burden of proving advice of rights on previous pleas.
There was no objection at the time thе multiple offender bill was considered; in fact, defendant, through counsel, admitted the allegations. Therefore, the State was nоt required to show a Boykin compliance.
The assignment is without merit.
DECREE
Defendant‘s conviction and sentence are affirmed.
AFFIRMED.
CALOGERO and BLANCHE, JJ., concur.
MARCUS, J., concurs and assigns reasons.
MARCUS, Justice (concurring).
I would overrule both State v. Lewis, 367 So.2d 1155 (La.1979) and State v. Holden, 375 So.2d 1372 (La.1979); however, if Lewis is not overruled outright, I would continue to concur in the limitation placed on it in Holden. Accordingly, I respectfully concur.